Bowser, R. v

A sentencing court must distinguish between arson with intent and reckless arson. The former attracts a higher sentencing bracket, although a deliberate attempt to cause fire damage and fear at an occupied home may place reckless arson at the upper end of its range.

An imprisonment-for-public-protection sentence may be imposed only for a specified offence. An ineligible offence requires a determinate sentence. A sentence exceeding the applicable statutory maximum is unlawful and must be replaced.

The appellant pleaded guilty to reckless arson and intimidation, together with theft, threatening behaviour, possession of an offensive weapon and criminal damage. The arson involved a deliberate attempt to set fire outside the complainant's flat after an earlier confrontation.

On 6 December 2005, the sentencing court imposed imprisonment for public protection for arson and intimidation, with a three-year specified period, and imposed concurrent determinate sentences for the remaining offences. The appellant appealed the three-year period by leave of the single judge.

The appeal raised whether the sentencing judge had sentenced on the mistaken basis of arson with intent, whether imprisonment for public protection was available for intimidation, and whether the criminal-damage sentence exceeded the lawful maximum.

1. The appeal was allowed. The arson sentence remained one of imprisonment for public protection, but its specified period was reduced from three years to two years. The imprisonment-for-public-protection sentence for intimidation was quashed and replaced with a determinate sentence of three years. The criminal-damage sentence was reduced from four months to two months.

2. The offence was a grave example of reckless arson. The appellant deliberately tried to introduce a homemade firebomb through the complainant's letter box while she was at home. It was capable of causing fire damage and was plainly intended to cause fear. It was therefore proper to regard the case as being at the upper end of the reckless-arson range.

3. However, the sentencing judge had not given sufficient weight to the distinction between arson with intent and reckless arson, and appeared to have had the former offence in mind. The higher sentencing bracket for arson with intent could not be used for the offence to which the appellant had pleaded guilty. Under section 82A of the Powers of Criminal Court (S) Act 2000, the Court selected six years, allowed two years for the guilty plea, and applied the 50 per cent calculation to reach a two-year specified period.

4. Imprisonment for public protection could not be imposed for intimidation because it was not a specified offence under the Criminal Justice Act 2003. A determinate sentence was required. Further, the four-month criminal-damage sentence exceeded the applicable three-month maximum and was unlawful.

• Court of Appeal (Criminal Division) In [2006] EWCA Crim 1314, allowed the sentence appeal and substituted a two-year specified period for arson, a determinate three-year sentence for intimidation, and a two-month sentence for criminal damage.
• Sentencing court On 6 December 2005, imposed imprisonment for public protection for arson and intimidation with a three-year specified period, and concurrent determinate sentences for the other offences.